Washington Cases November 28, 2022: Lindsay A. M. v. Comm'r of Soc. Sec.

Case Description

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ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS

DAVID W. CHRISTEL UNITED STATES MAGISTRATE JUDGE

Plaintiff seeks judicial review under 42 U.S.C. § 405(g), of the Commissioner's denial of his applications for Title II disability insurance benefits (“DIB”) and for Title XVI supplemental security income (“SSI”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 2. For the reasons below, this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Social Security Commissioner (“Commissioner”) for further proceedings consistent with this Order.

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BACKGROUND

On July 2, 2018, Plaintiff filed for DIB and SSI, alleging disability as of January 31, 2006. See Dkt. 8, Administrative Record (“AR”) 404-20. The applications were denied upon initial administrative review and on reconsideration. AR 128-29, 150-51.

The ALJ held a hearing on February 14, 2018, and issued an unfavorable decision on March 18, 2020. AR 86-127, 177-95. On September 22, 2020, the Appeals Council reversed and remanded the case to the ALJ. AR 198-99. On October 19, 2021, the same ALJ held a new hearing and subsequently denied Plaintiff's applications on November 3, 2021. AR 12-46.

Plaintiff requested Appeals Council review of the ALJ's second decision, and the Appeals Council denied review on March 15, 2022, making the ALJ's decision the Commissioner's final decision. AR 1. Plaintiff now seeks review of the ALJ's November 2021 decision.

STANDARD OF REVIEW

This Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. See 2 U.S.C. § 405(g); Bayliss v. Barnhart , 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel , 161 F.3d 599, 601 (9th Cir. 1999)).

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DISCUSSION

Plaintiff raises two issues for review, challenging: (1) the ALJ's step two determination declining to find his cervical radiculopathy and/or muscle spasms to be severe impairments; and (2) the ALJ's related step four determination discounting Plaintiff's subjective symptom testimony regarding his cervical radiculopathy and/or muscle spasms and failing to add a more stringent RFC limitation to his handling and fingering capacity.

At the outset, the Court notes that both of Plaintiff's claims concern symptoms, including numbness, tingling, and pain in Plaintiff's upper extremities, that stem from a physical impairment for which a precise diagnosis - cervical radiculopathy and/or muscles spasms -remains unclear. Plaintiff ultimately contends that the symptoms caused by this particular physical impairment support an RFC limitation restricting him to the occasional handling and fingering of items, contrary to the ALJ's finding that Plaintiff could engage in frequent handling and fingering. AR 23. Plaintiff accurately notes that had the ALJ found that he was functionally capable of only occasional handling and fingering and that a vocational expert (“VE”) has already testified that such a limitation would be “work preclusive” given Plaintiff's other RFC limitations. See AR 81-82.

Plaintiff began experiencing the symptoms at issue here in March 2019, nearly a year prior to his first ALJ hearing. AR 826, 828. He complained to his treating physician, Dr. John Tilley, of numbness in his hands and fingers and that when he sat for long periods of time, his “right upper back [went] numb.” AR 826, 828. Dr. Tilley ordered a cervical magnetic resonance

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imaging test (“MRI”), and in his related treatment notes, described the problem as “[c]ervical radiculopathy.” AR 828. Plaintiff continued to suffer from the same symptoms through November 2019, at which point Dr. Tilley again diagnosed the “problem” as “cervical radiculopathy,” and ordered physical therapy. AR 1718.

In January 2020, based on his “[n]eck pain with radicular upper back pain and tingling in all fingers,” Plaintiff underwent the first MRI of his cervical spine. AR 1732. The MRI showed “C5-C6 spondylosis with left central disc osteophyte complex/protrusion,” and “[m]ild to moderate central canal stenosis at ¶ 5-C6 with mild flattening of the left ventral cord.” AR 1819. Following the MRI, Dr. Tilley then referred Plaintiff to an orthopedic physician, Dr. Kim Driftmier, at the Harborview Surgical Spine Clinic. AR 1817, 2045-49.

Meanwhile, one month later, at his first ALJ hearing in February 2020, Plaintiff testified that recent MRI results suggested that he was experiencing “issues going on in the upper portion of [his] spine.” AR 104. As a result, he testified that he loses feeling in his hands for up to forty minutes at a time, which makes it difficult to grip things. AR 92, 99. Plaintiff explained that he is sometimes unable to write using a pen, to respond to text messages on a phone, or to press a button on a remote control. AR 100. In addition to the loss of feeling, Plaintiff stated that he experiences spasms that make him feel as if he is paralyzed or “being electrocuted” because he will just “lock up and can't move.” AR 101. According to Plaintiff, the spasms begin around where his spine meets his shoulder in his upper back, and “throb[] back and forth.” AR 102. He also noted that he is most likely to experience the spasms and the numbness if he sits down for a prolonged period of time. AR 105.

Later in February 2020, approximately one week after Plaintiff's first ALJ hearing, Dr. Driftmier examined Plaintiff and reviewed his medical records, including his January 2020 MRI.

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AR 2048. Dr. Driftmier concluded that Plaintiff was not suffering from cervical radiculopathy but that his “somewhat debilitating back pain [was] caused by an intense trapezius muscle spasm.” AR 2048. She opined that the cause of the spasms was “multifactorial,” and included his post-traumatic stress disorder (“PTSD”), anxiety attacks, and a past bike accident. AR 2048. Dr. Driftmier further stated that Plaintiff was “not a surgical candidate,” but that he would benefit from rehabilitative medicine. AR 2048.

Weeks later, in March 2020, the ALJ issued his first decision denying Plaintiff's applications for benefits. AR 180-90. However, the ALJ failed to address Plaintiff's January 2020 MRI or any of his cervical and upper extremity complaints, and, in part for this reason, in September 2020, the Appeals Council reversed and remanded the case for a new hearing and decision. See AR 180-90, 199.

In particular, the Appeals Council found that the ALJ erred when he failed to consider Plaintiff's January 2020 MRI, which it noted “may corroborate [Plaintiff's] neck and upper extremity complaints that began in the spring of 2019.” AR 199. On remand, among other things, the Appeals Council ordered the ALJ to reconsider Plaintiff's RFC and to “obtain additional evidence concerning [his] musculoskeletal . . . impairments,” including, “if warranted and available, a consultative examination and medical source opinions about what [Plaintiff] can still do despite the impairments.” AR 199. Additionally, the Appeals Council noted that the ALJ “may request the medical sources [to] provide additional evidence and/or further clarification of the opinions.” AR 199.

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Plaintiff subsequently testified at the second hearing, which took place in 2021, that he continues to suffer from symptoms related to the cervical radiculopathy and/or muscle spasms. See AR 71 (asserting that the “severe muscle spasms and pains in my neck area and right shoulder” “still cause[] me a lot of pain to this day”). Plaintiff added that due to the pain and spasms, he is unable to reach anything above his head and that when he holds things with his arms in an outstretched position, his hands will go numb. AR 71. He noted that when he is getting groceries, he has to stop frequently because his hands “numb up,” and he loses feeling and cannot hold anything or pick anything up - sometimes for as long as twenty minutes. AR 71-72. The numbness will continue on and off again as long as he is utilizing his arms and hands. AR 72.

On remand, the ALJ failed to obtain additional medical opinions, a consultative examination, or “further clarification,” regarding the scope, intensity, and limitations associated with Plaintiff's upper extremity impairments. See AR 18, 25-28, 31-32, 34; cf. AR 198-99 (Appeals Council order). Instead, in addition to the medical evidence, the ALJ again relied on the only two existing medical opinions regarding Plaintiff's musculoskeletal impairments, both from non-examining state agency consulting physicians, Drs. Paula Lantsberger and JD Fitterer. AR 32. Both opinions were completed in September and December 2018, respectively, prior to the spring 2019 onset of Plaintiff's cervical radiculopathy and/or muscle spasms and prior to the Appeals Council's September 2020 remand order. AR 143-44, 169-71. Both Drs. Lantsberger

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and Fitterer opined that Plaintiff was limited to light work with additional postural and environmental limitations. AR 143-44, 169-71. In particular, absent any discussion, Drs. Lantsberger and Fitterer opined that Plaintiff had no manipulative limitations. AR 144, 171.

In his November 2021 decision, the ALJ held that Plaintiff's cervical radiculopathy was not “severe” at step two because Dr. Driftmier had ruled it out as a diagnosis and “recorded unremarkable findings.” AR 18. At step four, the ALJ rejected Plaintiff's related subjective symptom testimony as “not entirely consistent with the medical evidence and other evidence in the record.” AR 25. The ALJ also found Dr. Lantsberger's and Fitterer's 2018 opinions persuasive at step four, stating that they were consistent with the record and Plaintiff's activities, including Dr. Driftmier's February 2020 evaluation and treatment notes. AR 32. In assessing Plaintiff's RFC, the ALJ concluded that while Plaintiff “cannot perform overhead reaching, [h]e

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can perform frequent reaching at or below the shoulder level.” AR 23. The ALJ also found that Plaintiff “can perform frequent handling and fingering.” AR 23.

I. Plaintiff's Symptom Testimony

The ALJ rejected Plaintiff's testimony regarding his “upper extremity function[ing]” for three reasons, concluding that it was: (1) inconsistent with the overall record evidence, AR 26; (2) contradicted by his own testimony, AR 30; and (3) inconsistent with Plaintiff's daily activities, AR 29-30.

If an ALJ rejects the testimony of a claimant once an underlying impairment has been established, the ALJ must support the rejection “by offering specific, clear and convincing reasons for doing so.” Smolen v. Chater , 80 F.3d 1273, 1284 (9th Cir. 1996) (citing Dodrill v. Shalala , 12 F.3d 915, 918 (9th Cir. 1993)); accord Smartt v. Kijakazi , No. 21-16009, 2022 WL 16986313, at *7 (9th Cir. Nov. 17, 2022) (confirming that the “clear and convincing” standard continues to apply). As with all of the findings by the ALJ, the specific, clear and convincing reasons also must be supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); see also Bayliss , 427 F.3d at 1214 n.1 (citing Tidwell , 161 F.3d at 601).

A. Longitudinal Record

In discounting Plaintiff's pain and symptom testimony as contrary to the overall medical record, the ALJ relied primarily on Dr. Driftmier's February 2020 visit notes, the allegedly sporadic nature of Plaintiff's complaints regarding his neck and upper extremities, and on Plaintiff's “conservative” medical treatment. AR 26. In doing so, the ALJ ignored Dr.

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Driftmier's alternate diagnosis, mischaracterized the record, and faulted Plaintiff for following Dr. Driftmier's own recommendation that his condition be treated conservatively. See AR 2048.

Plaintiff established an impairment giving rise to his numbness, tingling, and related pain -- regardless of whether that impairment was labeled by the ALJ as “cervical radiculopathy,” muscle spasm, or something else entirely. As noted, disagreement existed among Plaintiff's own physicians regarding the precise diagnosis, with Dr. Driftmier diagnosing a muscle spasm, and Plaintiff's treating physician, Dr. Tilley, diagnosing cervical radiculopathy. See AR 2048; see also AR 1815 (In March 2020, following Dr. Driftmier's diagnosis of a trapezius muscle spasm, Dr. Tilley continues to refer to Plaintiff's “[c]ontinued neck, right shoulder, . . . upper back pain and thoracic muscle spasms” as “cervical radiculopathy.”).

While Dr. Driftmier did not believe Plaintiff's symptoms were caused by cervical radiculopathy, she nevertheless acknowledged the “somewhat debilitating . . . pain” suffered by Plaintiff. AR 2048. Moreover, although Plaintiff did not report hand numbness during his single visit with Dr. Driftmier, he indeed reported it on numerous other occasions to Dr. Tilley and his physical therapists. AR 1660-94, 827-29, 1718, 1815. Significantly, Plaintiff's multiple medical records from Dr. Tilley, along with Plaintiff's 2020 MRI and CT scans, and 2019 physical therapy records, demonstrated that Plaintiff's symptoms were very real - regardless of whether they were termed “cervical radiculopathy” or “muscle spasm.” AR 1815-18, 1660-94, 827-29, 1718; see also AR 1903 (September 2020 CT scan of Plaintiff's cervical spine following a bicycle accident revealed “straightening of [the] cervical spine”).

Finally, the ALJ in essence faulted Plaintiff for following Dr. Driftmier's 2020 recommendation that he treat his condition conservatively. AR 26, 2048 (noting that plaintiff was not a surgery candidate). While conservative treatment may be a “sufficient [reason] to

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discount a claimant's testimony regarding severity of an impairment,” Parra v. Astrue , 481 F.3d 742, 750-751 (9th Cir. 2007), it was error for the ALJ to rely extensively on the substance of Dr. Driftmier's diagnosis, but then to fault Plaintiff for following Dr. Driftmier's advice.

For these reasons, this rationale is not supported by substantial evidence.

B. Contradictions/Inconsistent Statements

The ALJ also found that the veracity of Plaintiff's related symptom testimony was diminished by allegedly contradictory statements Plaintiff made while testifying. AR 31.

Because Plaintiff does not have a driver's license, he testified that he must walk or take a bus when he goes to the grocery store twice per month. AR 56-57. In response to the ALJ's questions, Plaintiff testified that “to get some type of exercise,” he walks the nine blocks to the grocery store. AR 58. Plaintiff explained that he brings a single bag, which he uses to consolidate and carry home the groceries he shops for twice a month. AR 58. The single bag typically weighs under thirty-five pounds. AR 58.

The ALJ found that the above testimony was inconsistent with Plaintiff's follow-up testimony during which Plaintiff explained that when he walks home from the grocery store, he is required to stop multiple times because his hands “go numb” and he loses “feeling in [his] fingers and most of [his] hands.” AR 71.

There is no contradiction in the two excerpts. Therefore, this reason is likewise not sufficiently specific, clear, and convincing, to undermine Plaintiff's related testimony.

C. Daily Activities

Finally, the ALJ similarly found that Plaintiff's symptom testimony regarding numbness and pain was inconsistent with his routine activity of grocery shopping. AR 29-30. The ALJ reasoned that “if [Plaintiff's] hand issues were as symptomatic as he asserted, he would have

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taken that bus that was available instead of walking.” AR 29. The ALJ also noted that Plaintiff regularly rode a bike, which the ALJ found was inconsistent with his symptom testimony. AR 30.

An ALJ may reject a plaintiff's testimony based upon daily activities that either contradict his testimony or “meet the threshold for transferable work skills.” Orn v. Astrue , 495 F.3d 625, 639 (9th Cir. 2007). However, “the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from [his] credibility as to [his] overall disability.” Vertigan v. Halter , 260 F.3d 1044, 1050 (9th Cir. 2001).

Here, Plaintiff testified that his grocery shopping trips were limited to twice a month. AR 57. He explained that he walked in an attempt to get some exercise, even if that meant stopping multiple times given his symptoms. AR 58, 71-72. As for riding his bike, Plaintiff clarified that he does not go on any “big adventures” with his bike, and “only take[s] it out for short spurts,” such as when he needs to go to “the corner store” or “to a friend's house down the street.” AR 59. The Ninth Circuit has held that “[d]isability claimants, [like Plaintiff,] should not be penalized for attempting to lead normal lives in the face of their limitations,” which is what Plaintiff was attempting to do. See Reddick v. Chater , 157 F.3d 715, 722 (9th Cir. 1998). Accordingly, this reason was not sufficiently specific, clear, or convincing, either.

In sum, the ALJ's rejection of Plaintiff's testimony regarding his upper extremity numbness, tingling, and pain, was not supported by substantial evidence regardless of whether the symptoms were caused by cervical radiculopathy or muscle spasms. Remand is required for the ALJ to reconsider and accord appropriate weight to Plaintiff's symptom testimony.

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II. The ALJ's Step Two Findings

Plaintiff also contends that the ALJ erred in concluding that his cervical radiculopathy and/or muscle spasms did not constitute severe impairments at step two. For the reasons below, the Court agrees.

At step two of the five-step sequential evaluation for disability claims, an impairment is “not severe” if it does not “significantly limit” the ability to conduct “basic work activities.” 20 C.F.R. § 404.1522(a). “Basic work activities are abilities and aptitudes necessary to do most jobs, including, for example, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling.” Smolen , 80 F.3d at 1290 (quotation omitted). “An impairment or combination of impairments can be found ‘not severe' only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual[']s ability to work.” Id. (quotations omitted). A severe impairment “must be established by objective medical evidence from an acceptable medical source,” 20 C.F.R. § 416.921, and the ALJ must “consider the claimant's subjective symptoms, such as pain or fatigue, in determining severity.” Smolen , 80 F.3d at 1290 (citations omitted).

In practice, “the step-two inquiry is a de minimis screening device to dispose of groundless claims.” Smolen , 80 F.3d at 1290. “[Step two] is not meant to identify the impairments that should be taken into account when determining the RFC.” Buck v. Berryhill , 869 F.3d 1040, 1048-49 (9th Cir. 2017).

As noted, the ALJ found that Plaintiff's cervical radiculopathy was not “severe” at step two based largely on Dr. Driftmier's February 2020 notes “rul[ing] out cervical radiculopathy.” See AR 18 (asserting that "the evidence does not establish a diagnosis of cervical spinal radiculopathy”). This finding is not supported by substantial evidence for two reasons. First, as

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Plaintiff points out, his treating doctor diagnosed cervical spinal radiculopathy and noted that Plaintiff had symptoms consistent with the condition. See AR 828-29, 1718. Second, in making this step two determination, the ALJ overlooked Dr. Driftmier's alternative muscle spasm diagnosis and failed to address whether Plaintiff's muscle spasms constituted a severe impairment.

The objective medical evidence, along with Plaintiff's symptom testimony, clearly established more than a “slight abnormality.” See AR 71-72, 92-105, 828-29, 1718, 1732, 1815, 1903. Thus, the ALJ should have found that Plaintiff's physical impairment - whether labeled “muscle spasms” or “cervical radiculopathy” - constituted a severe impairment at step two. See Wingo v. Berryhill , No. 3:16-CV-05619-DWC, 2017 WL 1422000, at *3 (W.D. Wash. Apr. 21, 2017) (ALJ erred in finding Plaintiff's back impairment was not severe where ALJ failed to discuss probative evidence without explanation).

Having determined that the ALJ erred at step two, this Court must then determine whether the error was harmless. Lewis v. Astrue , 498 F.3d 909, 911 (9th Cir. 2007); Burch v. Barnhart , 400 F.3d 676, 679 (9th Cir. 2005). Any failure to classify an impairment as non-severe at step two is harmless if the ALJ subsequently considered the limitations posed by the impairment at a later step in the inquiry. See McGuire v. Kijakazi , No. 20-35898, 2021 WL 5861284, at *1 (9th Cir. Dec. 7, 2021) (finding that the ALJ's error at step two was harmless since the ALJ considered the non-severe impairment later in the inquiry); Tadesse v. Kijakazi , No. 20-16064, 2021 WL 5600149, at *1 (9th Cir. Nov. 30, 2021) (“Although an error at step two may be considered harmless where the ALJ moves to the next step in the analysis, the decision must reflect that the ALJ considered any limitations posed by the impairment at either step four or step five.”).

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Here, the Court has already concluded that, for the reasons above, the ALJ erred in rejecting Plaintiff's symptom testimony. As a result of that error, the ALJ did not fully consider at step four the limitations posed by Plaintiff's cervical radiculopathy or muscle spasms, and the Court cannot conclude that the step two error was harmless. Proper consideration of Plaintiff's related limitations at step four may have impacted the ALJ's RFC findings regarding Plaintiff's functional capacity for handling and fingering; as previously noted, the VE testified that a limitation to occasional handling and fingering would have resulted in a finding that Plaintiff was disabled. See AR 81-82.

On remand, after reconsidering Plaintiff's symptom testimony, the ALJ is therefore required to reassess how the limitations posed by Plaintiff's cervical radiculopathy/and or muscle spasms impact the ALJ's RFC assessment at step four as well.

III. Remedy

“‘The decision whether to remand a case for additional evidence, or simply to award benefits[,] is within the discretion of the court.'” Trevizo v. Berryhill , 871 F.3d 664, 682 (9th Cir. 2017) (quoting Sprague v. Bowen , 812 F.2d 1226, 1232 (9th Cir. 1987)). If an ALJ makes an error and the record is uncertain and ambiguous, a court should remand to the agency for further proceedings. Leon v. Berryhill , 880 F.3d 1041, 1045 (9th Cir. 2017). Likewise, if a court concludes that additional proceedings can remedy the ALJ's errors, it should remand the case for further consideration. Revels v. Berryhill , 874 F.3d 648, 668 (9th Cir. 2017).

It is not clear from the record here that the ALJ would be required to find Plaintiff disabled if all of the evidence were properly evaluated. Therefore, remand is appropriate. As discussed above, on remand, the ALJ must: (1) reconsider Plaintiff's symptom testimony as relates to his cervical radiculopathy and/or muscle spasms; and (2) following reconsideration of

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Plaintiff's symptom testimony, reassess how the limitations posed by Plaintiff's cervical radiculopathy/and or muscle spasms impact Plaintiff's RFC, with particular focus on Plaintiff's functional capacity for handling and fingering.

CONCLUSION

Based on the foregoing discussion, the Court finds the ALJ erred when he determined Plaintiff to be not disabled. The Commissioner's decision to deny benefits therefore is REVERSED, and this matter is REMANDED for further administrative proceedings consistent with this order.